“Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph.”
Haile Selassie

Wednesday, March 7, 2012

Press Release: Appeal Filed in Lugar Residency Case

Sen. Richard Lugar

Below is a press release issued regarding the appeal from the Election Commission's ruling keeping Sen. Richard Lugar on the ballot. A couple points are in order.

First, I hope the Petitioners make clear on appeal that the Attorney General opinions failed to address whether Lugar is an "inhabitant" under Article 1, Section 3 of the United States Constitution. During the argument Attorney Bohnet argued that he disagreed with the AG opinions. While the AG opinions are obviously wrong if they are read to suggest Lugar can sign documents under threat of perjury he lives at a house he sold 35 years ago and continue to vote using that address, nonetheless those AG opinions just cite to state law and never mention the federal constitution or, more importantly, render an opinion on whether Lugar complied with the inhabitancy requirement of Article 1. The United States Supreme Court made clear in 1995 case U.S. Term Limits v. Thornton that state law, again the only authority cited by the AG, cannot expand, supplement or any way change a qualification for Congress contained in Article 1.

Finally, at the end of the day, there is one flaw with the inhabitancy challenge. Under the Constitution, it would appear Lugar need only has to be an "inhabitant" of the state on the day he is elected, i.e. November 6, 2012. Even though Lugar clearly is not now an "inhabitant," there is still time for him to get a home in Indiana. If he stubbornly refuses, then the Senate, which has the power to determine the qualifications of its members, can simply refuse to seat Lugar. If the Democrats control that body, that is a distinct possibility.

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Appeal Filed in Lugar Residency Case

Voters Challenge State Election Commission Ruling in Court

According to Eric C. Bohnet, attorney for the voters, “The Constitution requires that Senators be inhabitants of the states that elect them. But Sen. Lugar sold his last Indiana residence almost 35 years ago, and still votes from that old address for his voting registration because he doesn’t have anywhere in this state to call home. He’s become an inhabitant of Virginia, and thus ineligible to be elected to the Senate from Indiana. Voters need the issue resolved before the primary to ensure that Republicans choose a candidate who is eligible to be elected and avoid another ‘Charlie White’ scenario.”

The statute in question, Indiana Code 3-8-1-7, states:

A candidate for the office of United States Senator must have the qualifications provided in Article 1, Section 3, Clause 3 of the Constitution of the United States. The U.S. Constitution requires, in relevant part, that a Senator must be an “inhabitant” of their state.

There was no dispute at the Election Commission hearing on the matter that Richard Lugar sold his residence in Indiana in 1977 and moved to Virginia. Since then, he has maintained no physical residence in the State of Indiana.

Senator Lugar’s attorneys and the Commission relied heavily on Sen. Lugar’s stated intent to someday return to Indiana, and letters from the Indiana Attorney General stating that Senator Lugar could continue voting in Indiana without an actual residence here. These letters should provide a good defense against allegations of vote fraud, but they do not affect the federal constitutional law that determines qualifications for the United States Senate.

Two Indiana voters filed an appeal yesterday in Marion County Superior Court asking for review of the denial of their challenges to Richard Lugar’s candidacy for the U.S. Senate by the Indiana Election Commission. The appeal also seeks an injunction to prohibit election officials from printing ballots for the upcoming May 8 primary until the case is resolved. The challengers planto ask for expedited consideration of their appeal by the courts.

About Me

I have been an attorney since the Fall of 1987. I have worked in every branch of government, including a stint as a Deputy Attorney General, a clerk for a judge on the Indiana Court of Appeals, and I have worked three sessions at the Indiana State Senate.
During my time as a lawyer, I have worked not only in various government positions, but also in private practice as a trial attorney handing an assortment of mostly civil cases.
I have also been politically active and run this blog in an effort to add my voice to those calling for reform.